Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2017

“The £400,000 comma”

Is it a true story? It is at the least a widely circulated old story that many persons would have been in a position to correct if untrue. Here is a 1928 version [via Jot 101]

Solicitors in their private practice have evolved a language of their own, which weird though it may be, is seldom open to the reproach of obscurity. Very wisely they discard punctuations almost completely. They know that the omission or use of a comma in a legal document can be dangerous. A comma once cost the United States Government £400,000. It was nearly fifty years ago that the United States Congress in drafting a Tariff Bill enumerated in one section the articles to be left free of duty. Amongst these were “all foreign fruit-plants”. The copying clerk in his wisdom removed the hyphen and substituted for it a comma, making the clause read “all foreign fruit, plants, etc.” It took a year to rectify the error, and during that period all oranges, bananas, grapes, and other foreign fruits were admitted free of duty with the big loss to the State already mentioned…

Here’s another reference to the story, and many more can be found at this search.

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Schools roundup

  • Union contracts can result in truant-teacher syndrome [Larry Sand, City Journal]
  • “A Review of Department of Education Programs: Transgender Issues, Racial Quotas in School Discipline, and Campus Sexual Assault Mandates” [Linda Chavez et al., Regulatory Transparency Project]
  • Why is the FBI getting involved in college sports recruiting scandals? [Cato podcast with Ilya Shapiro]
  • School lobby in Pennsylvania, unable to defeat taxpayer advocates at ballot box, hopes to win in court instead [Matt Miller, PennLive on school finance suit]
  • “End Federal Pressure for Racial Quotas in Special Education” [Hans Bader, CEI]
  • Irvington, N.J.: “Student to get $6M after tripping, breaking arm in gym class” [AP/TribLive]

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Puerto Rico: Administration won’t extend 10-day Jones Act waiver

Protectionism for the benefit of stateside shipping interests wins out over the rescue-and-rebuild interests of Puerto Rico and its citizenry. And yes, non-Jones ships have already been coming to help in the island’s Hurricane Maria recovery, so forget the claim heard last week that lack of port capacity and the availability of U.S. government vessels makes the law irrelevant. [Scott Shackford, Reason, earlier here and here] And given the Act’s impact on consumers in Hawaii and Alaska, how can it be that all four members of the Hawaii congressional delegation, and two of the three from Alaska, are stalwart backers of the law? [Colin Grabow, Cato] More: Tyler Cowen.

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Crime and punishment roundup

  • Coming Oct. 18: Cato all-day conference on Criminal Justice at the Crossroads, speakers include Hon. Jed Rakoff, Clark Neily, Jeffrey Miron, Suja Thomas, Scott Greenfield, register here or watch online;
  • A bail bond agent’s letter to the editor responding to my Wall Street Journal piece on Maryland bail reform;
  • Domestic violence: Ontario Court of Appeal rules cultural differences cannot justify lighter sentence in criminal cases [Toronto Star, 2015]
  • “Police Union Complains That Public Got to See Them Roughing Up Utah Nurse” [Scott Shackford] “Bad Cops Will Keep Getting Rehired As Long As You Have Powerful Police Unions” [Ed Krayewski]
  • “Federal Judge In Colorado Rules Sex Offender Registry Is Unconstitutional” [Lenore Skenazy, Jacob Sullum, CBS Denver, Scott Greenfield] If a young man is mentally disabled and exposes himself, should he be barred for good from a busboy job or participation in Special Olympics? [Skenazy] More: David Feige, New York Times via Greenfield on the Supreme Court’s acceptance of a fateful factoid;
  • Trump to lift curbs on disposal of military surplus gear to police [Adam Bates, Jonathan Blanks, earlier]

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Trump: we’ll go after their broadcast licenses

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” — @realdonaldtrump Wednesday morning. Later that day he tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

As was quickly pointed out [AP], the chances are extremely remote that presidential wrath is actually going to cost any broadcasters their licenses (networks as such are not licensed, but their local affiliates are, including network-owned local stations). First Amendment attorney Floyd Abrams said that the threats could nonetheless have a chilling effect on coverage: “The threat, however unlikely, is one that broadcasters will have to take seriously.”

Note that the threat is utterly inconsistent with Trump’s having recently reappointed Ajit Pai to head the FCC. Had the chief executive seriously contemplated a drive against the broadcast licenses of his foes, as a 1960s-era president might have done, Washington is full of aspiring agency heads who would have served his ends better than free-marketeer Pai. Not for the first time, it would seem we have a President whose Twitter hand knows not what his signing hand is doing.

Matt Welch has already dug up a speech by Pai last month, as reported in Variety, that is to the point:

Pai said that he also sees “worrying signs” at the FCC, pointing to Twitter messages in which “people regularly demand that the FCC yank licenses from cable news channels like Fox News, MSNBC, or CNN because they disagree with the opinions expressed on those networks.”

“Setting aside the fact that the FCC doesn’t license cable channels, these demands are fundamentally at odds with our legal and cultural traditions,” Pai said.

John Samples reminds us of the bad bipartisan history of power plays aimed at broadcast speech, which didn’t work for Richard Nixon. David Harsanyi writes that “even if you’re not idealistic about free expression, it might be worth remembering that any laws or regulations you embrace to inhibit the speech of others, even fake-news anchors, can one day be turned on you.”

Of course, another theory one hears is that Trump doesn’t really mean it with his loose talk about curbing press freedom but is just, as it were, vice signaling.

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“Morally Innocent, Legally Guilty: The Case for Mens Rea Reform”

Excerpt [John Malcolm, Federalist Society Review]:

Proof of mens rea — a guilty mind — has traditionally been required to punish someone for a crime because intentional wrongdoing is more morally culpable than accidental wrongdoing; our justice system has usually been content to evaluate accidents that injure others as civil wrongs, but criminal punishment has been reserved for people who do bad acts on purpose. But that has changed as legislators and regulators have begun to see the criminal justice system, not as a forum for ascertaining moral blameworthiness and meting out punishment accordingly, but as just another tool in the technocratic toolbox for shaping society and preventing social harm. Mens rea reform, if Congress implements it, would constitute an important step toward restoring justice by preventing criminal punishment for actions like Bobby Unser’s leaving his snowmobile on federal land during a snowstorm. Ensuring that there are adequate mens rea standards in our criminal laws is one of the greatest safeguards against overcriminalization—the misuse and overuse of criminal laws and penalties to address every societal problem. While some critics argue that mens rea reform would only benefit wealthy corporations and their executives who flout environmental and other health and safety regulations, the truth is that such corporations and their high-ranking executives are able to hire lawyers to navigate complex regulations and avoid prosecution, while individuals and small businesses lack the time, money, and expertise to avoid accidentally violating obscure rules. Mens rea reform is necessary to ensure that our criminal justice system punishes in accordance with commonly held beliefs about right and wrong, which is important if it is to maintain its legitimacy in the eyes of all Americans.

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Watch: videos from Cato conference, The Future of the First Amendment

Watch: videos now online from last month’s Cato conference, The Future of the First Amendment. I talk religious freedom on a panel with Robin Fretwell Wilson of the University of Illinois Law School and John M. Barry, author of Roger Williams and the Creation of the American Soul:

Eugene Volokh gives a keynote speech on the “revolution in remedies” that is changing libel and privacy law, which “ties in with technological change” in the nature of media, over a period in which there has been virtually no change in the substantive doctrine of libel:

Other panels include a discussion of the remarkable findings of a new Cato poll on free speech and presentations on a diverse array of other topics including European regulation of online media, commercial speech, and campaign finance.

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